11.  The majority of the applicants were detained in Zamkova Prison, during the events the applicants complained of (see paragraph 4 above).
12.  The facts surrounding the applicants' alleged ill-treatment by the special forces in the course of training exercises conducted by the latter on two occasions, namely 30 May 2001 and 29 January 2002, while the applicants were held in Zamkova Prison in Iziaslav of the Khmelnytsky region, the manner in which these training exercises were conducted and the investigation into the circumstances of these events are disputed by the parties.
13.  The developments in the presentation of facts of the present case may be summarised as follows.
14.  The applicants' allegations of the conduct of the special forces' training were denied by the Government, who in their submissions as to admissibility of applications lodged on 28 March 2006 relied on the summary presentation of the facts made by the Registry of the Court. Simultaneously they stated that special tactical trainings in Zamkova Prison on 30 May 2001 and 29 January 2002 were organised without involvement of the prisoners and did not involve the applicants (see paragraph 17 below). They further stated that there was no evidence of the applicants' ill‑treatment. Presentation of facts, based on the applicants' allegations and Government's reliance on these alleged facts, appeared in the admissibility decision of 15 January 2007.
15.  Before the hearing of witnesses in the case, the Government witnesses made written statements in which most of them admitted that regular searches and training were organised in Zamkova Prison on 30 May 2001 and 29 January 2002. However, they categorically denied participation of special forces in searches of the residential premises of Zamkova Prison, which were conducted with involvement of Zamkova Prison staff only. The Government witnesses mainly underlined that tactical training sessions in Zamkova Prison did not involve the prisoners and were organised as strictly internal training exercises for the Prison Department staff and involved staff only.
16.  Additional facts were established by the Delegates in the course of the oral hearing before them, in the light of the oral statements made by the applicants and witnesses who appeared at the hearing. In particular, it was established that several rapid reaction units, among them Zhytomyr special rapid reaction unit of the Prison Department (hereafter – Zhytomyr special unit), were involved in the trainings organised on 30 May 2001 and 29 January 2002. Complementary factual and legal elements to the cases also came into view after the visit to Zamkova Prison on 27 June 2007 and from the post-hearing submissions made by the parties.
17.  Following the oral hearing, the Government again maintained that, based on the evidence heard, special forces did not participate in the training exercise as it was prohibited for police forces to participate in such exercises involving Prison Department and for Prison Department to use such police forces. They further maintained that no special forces ever entered the residential zone of Zamkova Prison. The applicants maintained their position as to the facts.
18.  Based on the above, the Court is confronted with several different versions of the facts. In particular, additional factual elements were discovered in the course of examination of the present applications and the fact-finding mission organised in the instant case. The Court will therefore describe these factual statements briefly, assess evidence gathered at each stage of the proceedings and reach its own final conclusion as to the factual circumstances of the cases.
19.  The facts, as initially presented by the applicants and not contested by the Government and thus described in the admissibility decision in the case, are referred to in Section B, subsection 1 below (see paragraphs 21-25 below).
A short summary of the facts as presented by the Government is contained in Section B, subsection 2 (see paragraphs 26-31 below).
20.  The witness oral evidence taken by the Court's Delegates at hearings conducted in Khmelnytsky is summarised in Annex to the judgment (see attached below), which is also referred to in Section C, subsection 1 (see paragraphs 32-33 below). Parties' comments as to the absence of particular witnesses and on the oral evidence are summarised in Section C, subsections 2 and 3 (see paragraphs 34-37 and 38-42, respectively, below), respectively.
A description of Zamkova Prison and summary of the parties' submissions as to the conditions of detention can be found in Section D, subsections 1 and 2-3, respectively (see paragraphs 43-50 below).
A summary of the documents submitted by the parties before the oral hearing (see paragraphs 52-64 below), the list of documents requested by the Court as a follow up to the oral hearing (see paragraph 65 below) and material and documentary evidence provided as a follow-up to the hearing of oral evidence (see paragraphs 66-80 and 81-83 below) are to be found in Section E, subsections 1, 2 and 3-4, respectively.
The summaries of investigations carried out by the General Prosecutor's Office (paragraphs 84-97 below), of the documentary evidence concerning the investigation by the Prison Department (see paragraph 98 below) and of the review of the complaints lodged by Mr Zherdev (see paragraphs 99-100 below) are contained in Section E, subsections 5, 6 and 7, respectively.
21.  The relevant extracts from the facts of the case as alleged by the applicants and as set out in the admissibility decision (see Druzenko and Others v. Ukraine, nos. 17674/02 and 39081/02, 15 January 2007) are as follows.
22.  The first training exercise began at about 10 a.m. on 30 May 2001. The cells of Zamkova Prison were attacked by the “Berkut” special police force that ill-treated the applicants. These forces were supervised by the Governor of Zamkova Prison Mr Snegir and prison officers Mr Mazurenko and Mr Mazepa. They attacked about 120 prisoners and searched them. At the end of this procedure the prisoners were asked whether they had any particular complaints about the police training. In the presence of the special forces nobody was willing to complain about these actions to the Governor of Zamkova Prison.
23.  Following the training exercise of 30 May 2001 several applicants sent unsuccessful complaints to the Supreme Court, the General Prosecutor's Office (the “GPO”), the Khmelnytsky Regional Prosecutor's Offices and the Prison Department about the aforementioned actions of the special forces and their alleged ill-treatment. They also raised various complaints about the conditions of their detention.
24.  As to the second training exercise, the admissibility decision mentioned that it began at 11 p.m. on 28 January 2002, when fourteen cells of Zamkova Prison (cells 1-12, 19 and 29), with approximately 100 prisoners, had been attacked by the “Berkut” special police force.
25.  Following this training, some of the applicants sent several unsuccessful complaints to various State authorities. In their further complaints to various authorities the applicants mentioned that heavy bodily injuries had been inflicted on them. They also complained that medical assistance had never been given to those injured, including the applicants, and that as a result of this attack the applicants Mr Litvinov, Mr Mironov, Mr Salov and Mr Kuzmenko had received injuries. The attack was supervised by a local prosecutor Mr Volkov, his assistant Mr Stasiuk and an unidentified person. In one of the replies sent to the applicants they were informed by the GPO that the Prison Department conducted a training on 29 January 2002, which was aimed at further training of staff and search for and seizure of prohibited items, such as weapons, drugs, finding escape routes, checking water, electricity and other engineering communications. The GPO stated that the applicants' complaints about their ill-treatment by “Berkut” were wholly unfounded. 2.  The Government's submissions as to the facts
(a)  The first and second training exercises in Zamkova Prison and the applicants' injuries
26.  In their observations of 28 March 2006 on the admissibility of the case and before the decision as to the admissibility of the case (see paragraph 14 above), the Government stated that they had relied on the facts as summarised by the Registry of the Court. However, they disputed a number of factual points referred to by the applicants. In particular, they contested the description of the manner in which the training exercise was organised and submitted that none of the training sessions involved the participation of prisoners and that both training exercises were conducted outside the residential zone of Zamkova Prison.
27.  The Government maintained that force had never been used against prisoners and specifically against the applicants. Moreover, they insisted that none of the applicants detained in Zamkova Prison during the training exercises and the subsequent searches on 30 May 2001 and 29 January 2002 had been injured, and that none of them had requested medical assistance or treatment.
28.  The Government stated that the applicants Mr Davydov, Mr Ilchenko and Mr Gomenyuk had received relevant and timely medical treatment for their medical conditions.
29.  The Government further maintained that the training exercises had been organised as part of the State's action plan to secure the effective operation of the penitentiary system, to prevent escapes from prisons, riots, the commission of criminal acts against the administration or other prisoners, etc. Such training exercises were lawful and the plans for them were approved in advance by the prosecution authorities responsible for supervising the lawfulness of the enforcement of sentences. They further upheld that a prosecutor had attended both training exercises in order to prevent possible violations of the law and to review possible complaints on the spot. He had found no violations of the law in the course of the training exercises organised on 30 May 2001 and 29 January 2002.
(b)  Investigation into the events surrounding both training exercises
30.  The Government stated that the applicants' complaints about inhuman conditions of detention and the use of force by a special police force, allegedly the “Berkut” unit, were duly examined by the prosecutor supervising the lawfulness of the enforcement of sentences. In particular, they stated that in 2001 there were 27 inspections conducted in Zamkova Prison, as a result of which 29 officials were subjected to different sanctions, in 2002 there were 29 inspections and 44 officials subjected to various sanctions. For instance on 13 March 2001 the Shepetivka prosecutor ordered the Governor of Zamkova Prison to review the nutritional, hygienic and other arrangements in prison as they did not comply with the domestic law. Thus, lodging a complaint with the prosecutor's office, notwithstanding the refusals to institute criminal proceedings upon the applicants' allegations of ill-treatment, had been an effective remedy. As to the complaints raised, the Government stated that the second applicant unsuccessfully raised his complaints before the General Prosecutor's Service only on two occasions – on 10 July and 14 October 2001. As to the third applicant, he complained only to the regional prosecutor's office, but not the General Prosecutor's office. Moreover, the results of these investigations and examination of the applicants' complaints led to a finding that they were unsubstantiated. The Government further maintained that all their complaints had been adequately examined by the domestic authorities, who sent the applicants and their representative Mr Zherdev prompt and relevant replies.
31.  The Government insisted that, of the first three applicants, only Mr Davydov had been placed in disciplinary detention. He was placed in disciplinary detention on 14 July 2001, and the form of punishment was solitary confinement in a SHIZO punishment cell for 15 days. They maintained that the disciplinary measures (change of severity in his regime of serving sentence to a more severe one) were imposed on the applicant twice on 29 July 2001 and 30 January 2002 on account of his refusal to reside with other prisoners and his threats to commit criminal offences.
32.  Since the facts of the case were disputed by the parties, the Court conducted an on-the-spot investigation with the assistance of the parties. In this respect, three Delegates from the Court took oral evidence between 25 and 27 June 2007 from twenty-two witnesses on the following issues:
(a)  the circumstances of the applicants' ill-treatment by the special forces of the Prison Department and operation of the special forces - the applicants, witnesses proposed by the applicants (Mr V. Didenko, Mr Mikhaylenko, Mr Tishalkov, Mr Getmansky), the witness proposed by the Government (Mr Shedko)[3], Mr Leventsov[4] (former First Deputy Head of the Regional Prison Department), Mr Snegir[5] (former Governor of Zamkova Prison) and Mr Iltiay[6] (First Deputy Head of the Prison Department);
(b)  the investigation into the applicants' allegations of ill-treatment and disciplinary sanctions applied to them - the applicants, Mr Bukher[7] (regional prosecutor), Mr Volkov[8] (local prosecutor) and Mr V. Didenko[9];
(c)  medical treatment and assistance provided to the applicants - the applicants, Mr V. Didenko, Mr Mikhaylenko, Mr Tishalkov, Mr Shedko, Mr Getmansky[10] and Mr Bondar[11] (a head of Zamkova's Prison medical unit);
(d)  the conditions of detention in Zamkova Prison – Mr Klipatsky, Mr Shatskiy, Mr Zlotenko, Mr Zaremskiy[12] (employees of Zamkova Prison at the time of the events), the applicants, Mr V. Didenko, Mr Mikhaylenko, Mr Tishalkov, Mr Shedko and Mr Getmansky[13].
33.  A further six witnesses had been summoned but did not appear (see paragraphs 34-37 below). Four of these witnesses had previously been employed by the Prison Department. In respect of their absence the Government submitted, in the course of the hearing, that since these absent witnesses had retired and were no longer employed by the State, the Government were unable to identify their whereabouts. All of the witnesses questioned by the Delegates gave preliminary written witness statements, either personally or through their representatives, and these statements were admitted to the case file. A summary of evidence given by the witnesses can be found in the Annex to the judgment.
34.  The Government stated that they had sent the summons to the address mentioned, which had been the address of the applicants' representative, Mr Bushchenko. According to the information initially supplied by Mr Bushchenko this applicant was under Government control as he was held in SIZO no. 21 of Odessa. Mr Bushchenko stated that he had the last contacts with the applicant via the address of that detention facility. He had had no further contacts with the applicant and stated that he did not know the exact address of the applicant and had unsuccessfully tried to contact him by phone and by mail. The Government provided no information as to where the applicant was after his last contacts with Mr Bushchenko via SIZO no. 21, neither did they indicate any measures undertaken by them in order to establish his whereabouts.
(b)  Absence of Mr Gaydamaka, Mr Mazepa, Mr Mazurenko, Mr Pylypenko and Mr Zakharov
35.  Mr Kyslov, Major from the Prison Department, assisting to the Government's Agent in the course of the hearing, stated that Mr Gaydamaka's and Mr Mazurenko's whereabouts were unknown. Mr Kyslov also mentioned that these witnesses were former employees of the Prison Department and had all retired. He mentioned that he had spoken to Mr Gaydamaka and Mr Mazurenko in person before the hearing. They had received the summons to appear and had signed these summons. One of them was somewhere in the Crimea. Mr Pylypenko's and Mr Mazepa's whereabouts were not known to the Government; they were both resident somewhere in Kyiv. Mr Pylypenko was privately employed somewhere in Kyiv. They also sent the summons to him. As to Mr Zakharov, Mr Kyslov mentioned that he could not be found.
(c)  The initial absence of Mr Getmansky
36.  Major Kyslov initially stated that the authorities could not find one of the former prisoners of Zamkova Prison, Mr Getmansky, as his whereabouts were unknown to the Government. Mr Getmansky, after additional information had been provided by Mr Bushchenko to the Government, subsequently appeared before the Delegates.
(d)  Absence of Mr Kostenko
37.  Mr Bushchenko, the applicants' representative, stated that a copy of the summons had been sent to this witness, who was a former prisoner of Zamkova Prison, but the lawyer could not contact him, although he had previously confirmed that he would appear before the Delegates.
38.  The Government considered that due to a number of contradictions and inconsistencies (both in principle and in detail) in the testimonies, given during the interrogation by five former Zamkova Prison prisoners and by three applicants, the applicants failed to establish that they had been beaten in the Prison on 30 May 2001 and 29 January 2002. Accordingly, the applicants could not claim to be victims in respect of any ill-treatment.
39.  In particular, in relation to the events of 30 May 2001, the Government maintained that:
–  the first applicant's statements were inconsistent and false;
–  the statements concerning the description of the uniform of the so‑called special forces that conducted the search given by the first and second applicant, Mr Didenko, Mr Mikhaylenko, Mr Tishalkov and Mr Getmansky were also false and had numerous discrepancies;
–  the first and the second applicants' statements that the so-called “special forces” that held the search in the residential premises of Zamkova Prison had automatic guns, contradicted the statements given by Mr Mikhaylenko and Mr Tishalkov, who remembered that the soldiers were unarmed;
–  Mr Getmansky's statements as to blank shots fired from automatic gun were also untrue as well as to other details of the trainings held;
–  Mr Getmansky's statements as to the third applicant's injuries were untrue and self-contradictory;
–  Mr Mikhaylenko statements about ill-treatment of prisoners in the course of the training were untrue as he could not physically see anything as well as the corridor from behind the closed door to the cell;
–  the contradictions in statements given by the second applicant, Mr V. Didenko and Mr Getmansky in that they knew about the training in advance against the statements given by the first applicant and Mr Tishalkov that they knew nothing about the training.
40.  In relation to the witness statements given as to the events of the training held on 29 January 2002, the Government insisted that:
–  the first applicant's statements as to the blank shots from automatic guns were false;
–  the investigation into the applicants' complaints was conducted in compliance with the requirements of Article 3 of the Convention;
–  the statements of Mr Didenko, Mr Getmansky, the first and the second applicants as to whether there were any prisoners who received injuries and their number as well as to whether medical aid was provided were also false, especially in view of the lack of medical evidence, including registers containing medical records, and witness statements given by Mr Bondar.
41.  The Government concluded that the inconsistent statements as to the presence of the special forces within the residential area, ill-treatment of the prisoners by these so-called special forces and their beatings by these forces and lack of medical treatment and assistance provided to the applicants and other prisoners, clearly showed that all of these statements were false. In their view the only statements that were true, consistent and logical and therefore credible were those given by Mr Shedko, a witness proposed by the Government and a former prisoner of Zamkova Prison. They concluded that there was no evidence established in the case that would prove that there had been any violation of the provisions of the Convention.
(b)  The applicants
42.  The applicants disagreed with the Government's comments and noted that the discrepancies, if there were any, in the statements given by the applicants and the witnesses-prisoners related only to minor details of the events and did not undermine the overall credibility of the applicants' and their witnesses' statements during the fact-finding mission of the Court in June 2007.
43.  Zamkova Prison, where the applicants were held, is a high security prison (максимального рівня безпеки) mainly holding male prisoners sentenced to life imprisonment or long term sentences for grave criminal acts. It comprised two main separated from one another guarded areas – residential area and the industrial area. Residential area included inter alia the following main buildings:
–  administrative area, including headquarters, medical and security units and laundry;
–  high security sector, containing prison for prisoners sentenced to life and walking yards for those prisoners;
–  prison shop, canteen, boiler, mini-bakery and the recreation club for the prisoners;
–  historical building of former Bernardine monastery built in 1610 (former church of the Roman Catholic order), called by the prisoners the Monastyr (Монастир) or the Cloister, comprising high level security wing and security, re-socialisation, quarantine, diagnosis and allocation cells;
–  disciplinary premises building, containing isolation wards of different regimes of detention (which included isolation ward cells (карцери), DIZO (ДІЗО) or disciplinary cells and punishment cells or SHIZO (ШІЗО)), and solitary confinement cells (OK (одиночні камери) or PKT (приміщення камерного типу) cells, so-called separated solitary confinement cells or cell-type premises).
Industrial area included inter alia the following main sites:
–  checkpoint (KPP; КПП або контрольно-пропускний пункт) and auto transport gates;
–  four construction areas, carbon-dioxide station and industrial departments nos. 1 and 2;
–  local household department and greenhouse;
–  wood and joinery workshops in workshop no. 1.
44.  According to the Government's submissions, in 2001-2002 there were 600 prisoners in Zamkova Prison, for a total area of 1,845.7 m2 of cell space (residential space, excluding prisoners' communal areas). Thus, the normal cell space per prisoner was 3.07 m2, which was not less than the 2.5 m2 per prisoner provided for by law at the material time.
45.  In particular, there were 230 prisoners held in the severe prison detention regime (TU unit of the Prison; режим тюремного ув'язнення), which had 684.5 m2 of cell space, thus 2.97 m2 per prisoner.
46.  About 130 prisoners were held in cell-type unit of the Prison (KU unit or cell-type prison premises for multiple prisoners; режим камерного утримання), having 434.1 m2 of cell space, thus 3.3 m2 per person.
47.  There were also 240 persons held in prison dormitories, with a total space of 727.1 m2 and thus 3.02 m2 per prisoner.
48.  As to disciplinary and punishment cells, Zamkova Prison also had 12 SHIZO or punishment cells (having 55.2 m2 of cell space for 12 prisoners), OK cells or separated single occupancy cells and PKT (having 285.7 m2 of cell space for a total of 58 prisoners).
49.  The applicants maintained that they were held in overcrowded cells, with approximately 3 m2 of space per prisoner. According to the applicants, their places of detention had no heating on account of shortage of coal, which was allegedly not delivered to Zamkova Prison. The food provided to the applicants and sold in the shops was of the lowest quality and was no longer consumable, as it had been produced in the 1980s and 1990s.
50.  The applicants complained that throughout their detention they were not allowed to receive food parcels from their relatives or obtain medical treatment. The penitentiary officers enjoyed wide discretion in applying disciplinary sanctions to prisoners, in particular with regard to placing them in solitary confinement.
51.  The parties submitted various documents concerning the training exercises conducted on 30 May 2001 and 29 January 2002. The documents, regulations and extracts from them, submitted by the parties before and after the hearing, which are relevant to the case, are briefly summarised below. 1.  The Training Plans Approved by the Regional Prison Department and by the Governor of Zamkova Prison
(a)  The training plan adopted by the Regional Prison Department on 25 May 2001 (Plan no. 1)
52.  The Training Plan “On the actions of Penitentiaries' administrations, in cooperation with the special forces of the Prison Department and rapid reaction units from the regional penitentiary institutions, for the purpose of neutralising a situation in which criminals had taken hostages and conducting a general search of the premises occupied by the prisoners in the residential zone” (hereafter – “Plan no. 1”), related to the first training exercise held on 30 May 2001 in Zamkova Prison, had been approved on 25 May 2001 by the Head of the Khmelnytsky Regional Prison Department and the Prosecutor in Khmelnytsky Regional Prosecutor's Office responsible for supervising the lawfulness of the enforcement of sentences.
53.  The following units were included in the general training exercise: personnel from Zamkova Prison, the Zhytomyr special unit and the rapid reaction units of Penitentiaries nos. 31, 58 and 98. One of the aims of the training exercise, as set out in the plan, was to train the personnel of Zamkova Prison and the rapid reaction units to conduct searches in the premises occupied by the prisoners and to search the prisoners.
54.  The special equipment to be used included: weapons (зброя), special restraining equipment (спеціальні засоби), personal protection equipment (засоби індивідуального захисту), service dogs (службові собаки), motor transport, action plans for extraordinary circumstances and layout diagrams.
55.  Plan no. 1 contained information on the operative circumstances (оперативна обстановка) in the Ukrainian penitentiary system as a whole and in the region's penitentiaries; these were considered to be problematic. The information indicated that the penitentiaries in the region were generally overcrowded, which impeded the effective enforcement of sentences. Additionally, it was stated that searches for prohibited items in these penitentiaries had become less effective.
The training was to be conducted in four stages:
–  from 5 a.m. to 8 a.m., a general meeting of the training exercise participants in the Prison staff and prisoners' club;
–  from 8 a.m. to 10 a.m., entry of the joint detachment into the Prison (зона охоронюваного об'єкту), blocking of isolated sections within the Prison and conduct of a selective general search in the isolated departments of the Prison;
–  from 10 a.m. to 11.30 a.m., conduct of an operation to free “hostages”, by the special forces and rapid reaction groups;
–  from 11.30 a.m. to 12.30 a.m., a general meeting of all participants in the Prison staff and prisoners' club, discussion of the training exercise and general conclusions as to its conduct.
(b)  The Training Plan (Plan no. 2) adopted by the First Deputy Head of the Regional Prison Department (in relation to the first training exercise)
56.  According to the Scenario “On the conduct of the practical exercise in Iziaslav Prison no. 31 and Zamkova Prison no. 58” (hereafter “Plan no. 2”), which was adopted on 30 May 2001, the main purpose of the search was to provide the special unit with a practical opportunity to manage the personnel of the penitentiary and the rapid reaction groups in extraordinary circumstances. The training exercise involved participation of groups responsible for blocking, documentation, medical assistance, convoy and searches, and special and reserve groups. The total number of staff involved was 231, including 18 officers from the special unit. There were also officers from the rapid reaction units of Zamkova Prison, Iziaslav Prison no. 31 and Shepetivka Prison no. 98. The special unit used 4 automatic guns, 4 handguns, firecrackers. Their equipment included helmets, flak jackets, rubber truncheons, teargas (черемуха) and handcuffs. The officers from the other units wore helmets (каски з забралом) or motor helmets, flak jackets, and carried shields, rubber truncheons, teargas and handcuffs. The units also had 3 special vehicles, 10 guard dogs and 2 video cameras. After the training exercise on liberating hostages, the special unit was to leave for its usual base.
(c)  The Training Plan (Plan no. 3) adopted by the Governor of Zamkova Prison (in relation to the first training exercise)
57.  According to the Plan for the conduct of the general search in Zamkova Prison (hereinafter – “Plan no. 3”), to be held on 30 May 2001, the search was to start at 8 a.m. and finish at 12 noon. A total of 76 members of staff from Zamkova Prison were to be involved in the general search. The personnel involved in the search were divided into nine mixed groups, with different head officers who were conducting a general search in both the residential and industrial zones of Zamkova Prison. The majority of the staff in these groups participated in searching both the residential and industrial zones.
58.  The premises subject to search were the following: workshop no. 1 (group no. 1); departments nos. 1 and 2 (groups nos. 2 and 3); sections nos. 1, 4, 7, Monastyr cells nos. 1, 2, 3, 4 (group no. 4); canteen, medical unit, boiler-house, sanitary section, building premises (group no. 5); cells belonging to the severe regime of detention - SHIZO (punishment cells), OK (separated solitary confinement cells), TU (severe regime of prison detention); prison detention in general detention regime area (group no. 7); departments nos. 2 and 3 (group no. 8) and departments nos. 5, 6 and 8 (group no. 9). The equipment mentioned in Plan no. 3 included 30 immobilising rods, 10 wooden hammers and 2 “Gamma” metal detectors.
(d)  The Training Plan (Plan no. 4), adopted by the Regional Prison Department on 26 January 2002 in relation to the second training exercise
59.  The Training Plan “On the conduct of tactical and specialised training with the personnel of Penitentiaries nos. 31 and 58 and rapid reaction groups from the penitentiaries in the region for the simulated purpose of combating group disobedience and mass disturbance” (hereinafter – “Plan no. 4”), relating to the second training exercise in Zamkova Prison on 29 January 2002, was approved on 26 January 2002 by the Head of the Khmelnytsky Regional Prison Department and the prosecutor in Khmelnytsky Regional Prosecutor's Office supervising the lawfulness of enforcement of sentences.
60.  The following units were involved in this training simulating mass disobedience: personnel from Penitentiaries nos. 31 and 58, rapid reaction units from Penitentiaries nos. 31, 58, 78, 98 and SIZO-29 (all in the Khmelnytsky Region). One of the aims of the training was to train Zamkova Prison's personnel and the rapid reaction units to conduct searches of the premises occupied by prisoners and searching the prisoners themselves. In particular, the search of prisoners and of the residential area was mentioned as one of the major training objectives.
61.  The special equipment to be used included: weapons, special restraining equipment, personal protection equipment and active protection equipment (засоби активної оборони), security dogs, vehicles, plans of action in extraordinary circumstances and layout diagrams. The training plans contained information on the operative circumstances in Zamkova Prison. This information indicated a substantial deterioration in the criminal propensities and socio-demographic composition of the prisoners in Zamkova Prison, which necessitated adequate measures. In particular, the following information on the composition of the prisoners was given to the training participants: many prisoners were convicted for serious crimes, including 65 prisoners who committed crimes while serving their sentences; 15 prisoners were sentenced for banditry; 4 for premeditated murder; 2 persons were likely to attack penitentiary staff; 18 persons were likely to attempt to escape; 12 had been sentenced for drug use, 60 persons were likely to engage in single-sex intercourse and equivalent activities and there were 22 persons with psychological disorders.
The training was to be conducted in four stages:
–  from 6 a.m. to 8.30 a.m., general meeting of the training participants in the Penitentiary club;
–  from 9 a.m. to 11 a.m., training of the joint detachment within the territory of the Prison, for the purpose of terminating group disobedience and mass riots;
–  from 11 a.m. to 3 p.m., entry of the joint detachment into the Prison, blocking of isolated sections within the Penitentiary, a general selective search in the isolated sections and cells of Zamkova Prison;
–  from 3 p.m. to 4 p.m., general meeting of the training participants at the Prison staff and prisoners' club, discussion of the training and general conclusions as to its conduct; instructions on further movement of the rapid reaction groups.
(e)  The Training Plan (Plan no. 5) adopted by the Head of the Regional Prison Department (in relation to the second training exercise)
62.  According to this Plan (hereinafter, “Plan no. 5”) the training exercise to be held on 29 January 2002 had the general purpose of providing for a general search of the residential and industrial zones and of the prisoners, and applying measures to strengthen law and order in the penitentiary. The training exercise involved participation of groups responsible for blocking, documenting, medical assistance, convoy, search, and the special and reserve groups. The total number of staff involved was 151. There were also officers from the rapid reaction units of Zamkova Prison, Iziaslav Prison no. 31, Shepetivka Prison no. 98, Prison no. 78 and SIZO (pre-trial detention centre) no. 29 of Khmelnytsky Region. The special taskforce unit was to use 3 automatic guns (AK-74), firecrackers, signal rockets. The equipment was to include helmets or motor helmets and shields, flak jackets, teargas (терен-4), rubber truncheons, handcuffs, etc. The units also had 1 special vehicle, 6 guard dogs and 2 photo cameras. The blocking group was equipped with steel helmets and weapons with blank ammunition; the breaking-up group had shields, “Sphere” helmets, rubber truncheons and flak jackets; the protection group had “Sphere” helmets, shields and rubber truncheons; the patrol groups were equipped with weapons without ammunition; the special measures group had rubber truncheons, gas masks and teargas; the extraction group had rubber truncheons, flak jackets and helmets; the convoy group had flak jackets, “Sphere” helmets and rubber truncheons; the documenting group was equipped with photo and video equipment and the reserve group had weapons, gas masks and steel helmets. Each group had specific tasks. All of the groups would participate in the general search in the Prison, and the blocking group was to block the isolated areas of the Prison before the search began.
(f)  The Training Plan (Plan no. 6) adopted by the Governor of Zamkova Prison (in relation to the second training exercise)
63.  According to the Plan of conduct of the general search in Zamkova Prison (hereafter – “Plan no. 6”), to be held on 29 January 2002, the search had to start at 9 a.m. and finish at 12 noon. A total of 29 members of staff of Zamkova Prison were to be involved in the general search. The aim of the search was to find prohibited items and to identify preparations for escape, preparatory actions for the commission of criminal offences, etc. The personnel involved in the search were divided into three mixed groups, with different commanding officers who were to conduct a general search in the residential zone of Zamkova Prison.
64.  The premises involved were: the SHIZO, PKT, OK, TU in the severe detention regime area (group no. 1); cells nos. 19 and 29 in departments nos. 5 and 8 (group no. 2); departments nos. 9 and 10 (group no. 3) in the prison section of the general detention regime area. The equipment mentioned in Plan no. 6 included 10 wooden hammers and 2 “Gamma” metal detectors.
65.  On 14 August 2007 the Court requested the Government to provide the following additional documentary evidence:
“... –  copies of the relevant legal regulations (regardless of the issuing authority) governing searches at prison, including rules of conduct for prison staff and documents setting out the rights and duties of the prisoners during searches;
–  regulations concerning the establishment, training and operation of the special forces or so-called “rapid reaction units” of the State Department for Enforcement of Sentences (decree of 27 April 2000), referred to by Mr V.S. Leventsov and Mr M.P. Iltiay in their statements given on 26 and 27 June 2007, respectively;
–  a copy of the decree no. 193дск of the State Department for Enforcement of Sentences dated 30 August 2002 (registered in the Ministry of Justice on 20 September 2002 no. 771/7059) concerning processing of prisoners' correspondence;
–  regulations dealing with the storage, archiving and destruction of registers of medical records, registers of complaints lodged by the prisoners and registers of correspondence;
–  a copy of the report of the internal investigation undertaken by the State Department for Enforcement of Sentences prepared by MM V.S. Leventsov and M.P. Iltiay for examination by the First Deputy Head of the State Department for Enforcement of Sentences Mr O.B. Ptashynsky, referred to on 27 June 2007 by Mr M.P. Iltiay;
–  a copy of the reports as to the “operative situation” in Iziaslav Zamkova Prison from January 2001 to December 2002 (mentioned in their statements on 26 and 27 June 2007, respectively, by MM Leventsov and Snegir) and those reports that were provided to staff of the State Department for Enforcement of Sentences before the searches on 30 May 2001 and 29 January 2002;
–  a list of the equipment and ammunition provided for use of the staff of the State Department for Enforcement of Sentences in the course of the training exercises on 30 May 2001 and 29 January 2002, together with copies of any internal decisions relating thereto;
–  the 2003 report of the Human Rights Ombudsman of the Parliament of Ukraine so far as it deals with special training units in prisons;
–  a video-recording of the trainings by the special forces held on 30 May 2001 and 29 January 2002, mentioned by witnesses Mr O. Tishalkov, Mr V.S. Leventsov and Mr M.P. Iltiay, respectively on 25, 26 and 27 June 2007;
–  copies of Mr Volkov's work records from December 2001 to February 2002, showing dates of and reasons for absence.
Further to the on-site inspection of the prison, your Government are invited to provide written information as to the size of cells visited by the delegation (including a plan), together with copies of the registers showing the prisoners in those cells on 30 May 2001, 29 January 2002 and on 27 June 2007. ...”
66.  On 28 September 2007 the Government replied that it could provide the Court only with the following documents and further evidence, which may be summarised as follows.
(a)  Instruction “On organising supervision of prisoners serving their sentences in correctional labour colonies”, approved by the Prison Department Order no. 70 on 27 April 2000 (as submitted by the Government)
67.  The Instruction establishes, inter alia, the procedure for searching prisoners and premises and the territories of residential and industrial zones inside Correctional Labour Colonies (hereafter “CLC”).
68.  According to paragraph 74 of the Instruction, searches of prisoners and premises are to be conducted on the basis of a schedule approved by the Prison Governor. The search is to be conducted with the participation of the personnel of the CLC and, where necessary, the special units for action in extraordinary circumstances, additional forces from other penitentiaries and bodies in the system for the enforcement of sentences. Searches and inspections are to involve technical equipment and, if necessary, specially trained dogs. It is prohibited to damage clothes, property, prison equipment and other objects in the course of the searches or inspections (paragraph 75).
69.  Personal searches of the prisoners may be “full” (that is, with the removal of all clothing) or “partial” (without the removal of clothing). Personal searches are to be conducted by a person of the same sex as the prisoner. The staff members who conduct a search must act conscientiously and reasonably, comply with the security measures and prevent any kind of inhuman treatment of the searched prisoner (paragraph 76 of the Instruction).
70.  According to paragraph 77 of the Instruction, a full search of a prisoner is to be carried out when he or she arrives at the CLC and on his or her departure from it; on placement in a SHIZO, DIZO or PKT/OK, and on leaving these premises. It is also to be conducted after the apprehension of a prisoner for attempted escape or other offences, before a long-term meeting with third parties from outside the penitentiary or after the latter's completion, if necessary. Inmates who are subjected to a full search are asked to hand in any prohibited items for storage, and must then gradually remove their hat, clothes, shoes and undergarments. After these demands are complied with, the separate parts of the prisoner's body and his clothes and shoes are inspected according to the standard procedure. Full searches are to be carried out in specialised premises or rooms near the Prison entry checkpoint (KPP), and also in the SHIZO and PKT/OK separated cells for multiple and single occupancy.
71.  According to paragraph 78, partial searches are to be conducted when prisoners leave for work and return from it, or in other specially designated places.
72.  Under paragraph 79, a prisoner who violates the regime or commits an offence is to raise his hands above his head and stretch out his legs. The person searching him is to stay behind him. In certain instances, where the prisoner is likely to possess weapons, he is to be invited to lean against the wall in front and stretch out his legs. The search is to be conducted by at least two staff members for security reasons.
73.  Paragraph 80 of the Instruction provides that a search of the premises and inspection of the territory of the residential and industrial zones is to be conducted in isolated sectors and workshops, according to the timetable envisaged by the calendar of searches. Every section shall be searched as required, but not less than at least once a month. Searches are to be supervised by the first deputy head of the CLC with responsibility for supervision and security, or by the head of the supervision and security division, on the instructions of the first deputy.
74.  According to paragraph 81 of the Instruction, a general search shall be conducted on the basis of a decision by the Prison Governor and under the latter's supervision, no less than once a month, and also in the event of complications in the “operative situation” in the CLC. During a general search all prisoners and the territory of the residential and industrial zone, and all premises and installations on their territory, are to be inspected. A search is conducted on the basis of the plan prepared jointly by the first deputy Governor with responsibility for supervision and security and the head of the supervision and security division.
75.  In the course of a general search prisoners must be gathered in special separate premises and subjected to an individual search. The residential premises must also be searched, in the usual manner; they are searched with the participation of the head of the social and psychological department. Furniture and items contained in it, sleeping places, including linen, pillows and mattresses, and various personal objects shall also be inspected. The walls, floor, windows and ceiling are to be inspected for secret storage places and manhole hatches. The residential and administrative buildings, their interior and exterior, the cellars and garrets, different communication channels, barriers, toilets, sports grounds, underground tunnels and other places where there could be possible secret storage areas are also to be inspected. Every cell in the premises where the SHIZO and cell-type premises are situated (i.e. PKT, (OK)) shall be inspected meticulously. All walls, ceilings and floors are to be knocked on for the purpose of finding secret storage areas and passages. The grating shall be inspected too, with special attention paid to cuts, score marks and other evidence of deterioration. The operational capacity of the doors, bolts and locks, and the reliability of the fixings of beds, tables and other furniture shall also be checked. Inmates held in those cells shall be subjected to a full personal search and their clothing shall also be inspected. The heads of the search groups are to report to the officer supervising the search, and general statements are to be drawn upon the basis of the search, signed by the supervising officer and the heads of the search groups. This statement is to be forwarded to the supervision and security division.
76.  Addendum no. 9 to the Instruction sets out the Action Plan for the personnel of a penitentiary institution in the event of extraordinary circumstances. In particular, it describes the actions to be taken by the special forces in the event of extraordinary circumstances, such as the taking of hostages or mass disobedience. It further establishes the procedure for acting in such circumstances and provides for the division of the special forces into groups for reinforced supervision and security, blocking groups, extraction groups, documenting groups, a group for the use of the special restraining equipment and a reserve team (in the event of mass disobedience, provision is also made for the participation of a medical assistance group and a patrol group). The addendum also envisaged the procedure for use of the special restraining equipment (for instance, it is prohibited to strike the head or face with a truncheon) and weapons (to be used only in exceptional circumstances, where it is impossible to fulfil the task by other means).
(b)  Order no. 75 of the Prison Department of 27 April 2000 “On the establishment of special units within the system for the enforcement of sentences, for action in extraordinary circumstances, approval of personnel and the Regulations on these units”
77.  The Order established the special units within the Prison Department. It remained in force until 8 September 2003, when a new Prison Department Order, no. 163, “On the establishment of special units within the system for the enforcement of criminal sentences, approval of their composition and regulations on them” was adopted (it was subsequently annulled on 10 October 2005 by Order no. 167). It envisaged the creation of an inter-regional special unit for action in extraordinary circumstances within the Zhytomyr Regional Department for the Enforcement of Sentences. This unit's scope of territorial jurisdiction extended to Khmelnytsky region and the penitentiaries in this region (paragraph 6 of the Order). The Order also provided for the creation of rapid reaction units, consisting of 10-15 most qualified officers in the penitentiary institutions (paragraph 9 of the Order). The heads of the special units were ordered to cooperate with the rapid reaction units of the penitentiaries within their territorial jurisdiction.
78.  According to the Regulation “On the special units of the system for the enforcement of sentences for action in extraordinary circumstances in the regional departments of the State Department for the Enforcement of Sentences” (Addendum no. 1), the purpose of these units was to react to extraordinary situations in penitentiaries, such as riots and mass disobediences, and to react appropriately to changes in the “operative circumstances” in the jurisdiction to which such units belonged (paragraph 1.1). The personnel of these units were to be selected from persons who possessed the required physical and psychological qualities and were able to act in extreme situations (paragraph 1.9). The special unit had a special uniform and shoes, special restraining equipment and other equipment (paragraph 1.14) for the exercise of their tasks and duties. One of the group's objectives was to take preventive measures in order to counteract mass disobedience and offences in prisons (paragraph 2.5).
79.  According to paragraphs 3.1-3.5 of the Regulation, the heads of the Regional Prison Departments were allowed to make proposals as to the use of these units in the penitentiary institutions (планове відпрацювання установ). In particular, the department head in the region responsible for the unit was to establish the unit's calendar of activities on a six-monthly basis. The unit acts on the basis of specially developed plans approved by the head of the regional department and the respective prosecutor. The Regulation stipulated that the unit officers' actions should comply with the law and should be based on humane treatment of prisoners.
80.  By virtue of Addendum no. 2 to the Order, Zhytomyr special unit was composed as follows: the commander of the unit (a major), four officers (two captains and a senior lieutenant), two heads of detachments (senior warrant officers) and eighteen warrant officers. The total number of unit officers was twenty five.
81.  According to the report by Mr S.O. Zlotenko, head of the guarding, supervision and security division, submitted to the Head of the State Prison Department on 6 September 2007, there was no video recording of the training exercises conducted on 30 May 2001 and 29 January 2002.
82.  According to the information note produced by the deputy Governor of Zamkova Prison, dated 27 June 2007, cells nos. 2, 8 and 29 in the Monastyr measured 30.8 m2, 22.8 m2 and 35 m2, respectively.
83.  According to the information note prepared by the acting head of the documentation service in Khmelnytsky Regional Prison Department, the documents relating to the “operative situation” in Zamkova Prison and files relating to these issues have been destroyed, according to Order no. 21 of the State Prison Department of 4 February 2004 “On approval of the list of documents created in the course of the operation of penitentiary bodies and institutions of the State service for the enforcement of sentences, designating the terms of storage”.
84.  The documentary evidence provided by the Government concerning the investigation into the applicants' complaints may be summarised as follows.
85.  On 17 August 2001 Prosecutor Volkov, in response to the complaints lodged by the applicants, replied that no violations of the law had been found on the basis of the allegations of ill-treatment.
86.  On 14, 20 and 26 September 2001 the head of the division within the General Prosecutor's Office responsible for supervising the enforcement of sentences in criminal cases, after examining the complaints lodged by Mr G. Zherdev alleging ill-treatment of the applicants by the “Berkut” special police force, requested the First Deputy Prosecutor of the Khmelnytsky Region to conduct an investigation into them.
87.  On 24 September and 1 October 2001 an assistant to Khmelnytsky Regional Prosecutor supervising the enforcement of sentences in criminal cases, requested Mr Volkov, the Shepetivka Deputy Prosecutor supervising compliance with the law in the enforcement of criminal sentences, to conduct an investigation into the complaints lodged by Mr Zherdev.
88.  On 9 November 2001 Mr Volkov replied to Mr Ilchenko's complaints about the conditions of detention and stated that the conditions in question complied with the law.
89.  On 12 April and 13 May 2002 respectively the head of the division in the General Prosecutor's Office supervising the enforcement of sentences in criminal cases and the Deputy Prosecutor General requested the Khmelnytsky Regional Prosecutor's Office to conduct an investigation into the complaints lodged by Mr Zherdev. These complaints were transferred to Mr Bukher, the senior assistant prosecutor of Khmelnytsky Regional Prosecutor's Office, who was responsible for supervising the enforcement of sentences in criminal cases and had been ordered to investigate the matter.
90.  On 7 May 2002 Mr Stasiuk, assistant to the Shepetivka Prosecutor, acting on orders from Mr Bukher, questioned the prisoners detained in cells nos. 8 and 29 (Mr Ilchenko, Mr Kulik and Mr Litvinov), who stated that they had been beaten by members of the special forces in the course of the search conducted at the Prison on 29 January 2002. The other prisoners who were questioned stated that no physical force had ever been applied to any prisoner in the course of the search and that nobody from cell no. 29 had ever been beaten. Mr Stasiuk also questioned Zamkova Prison personnel, including Mr Zakharov, Mr Mazurenko, Mr Chudyuk, Mr Gaydamaka, Mr Volkov and Mr Bondar. They all confirmed that no force had ever been used against the prisoners. Mr Bondar stated that no medical assistance had been requested by the prisoners after the second training exercise and that no one had received any injuries. Mr Bondar's statement mentioned that Mr Kulik suffered from miositis of the spine muscles (міозит м'язів спини) and osteochondrosis (остеохондроз).
91.  On 10 May 2002 Mr Volkov, the Shepetivka Prosecutor, ordered the Governor of Zamkova Prison to apply disciplinary measures to the prisoners Mr Kulyk, Mr Lytvynov and Mr Ilchenko for their failure to comply with the lawful procedure for submitting complaints. In particular, he alleged that they had violated Article 44 of the Code for the Enforcement of Sentences, and Rules 17.2 and 33.1 of the Penitentiary Internal Rules.
92.  On 29 May 2002 Mr Bukher, the senior assistant prosecutor of the Khmelnytsky Regional Prosecutor's Office, questioned Mr Ilchenko in person. In his explanations, Mr Ilchenko again asserted that he had been beaten by the special forces. He also alleged that his complaints had not been forwarded by the staff of Zamkova Prison and that Mr Gaydamaka and Mr Boyko had tried to force him to withdraw his complaints. Mr Ilchenko also stated that prosecutor Volkov and his assistant wanted him to withdraw the complaints lodged. Additionally, he thought that they were in fact covering up for violations of the law in Zamkova Prison.
93.  On 11 June 2002 Mr Bukher issued a resolution, by which the Khmelnytsky Regional Prosecutor's Office refused to institute criminal proceedings, finding no unlawfulness on the basis of the applicants' complaints. In particular, it found that the applicants Mr Ilchenko and Mr Davydov had not been ill-treated by the “Berkut” special police forces, which had allegedly trained in Zamkova Prison and conducted a search of the premises and prisoners. According to the text of this resolution:
“... Mr Zherdev, repeatedly, without verifying truthfulness of information, had sent complaints [on behalf of prisoners Mr Ilchenko, Mr Kulyk, Mr Druzenko, Mr Lytvynov and Mr Myronov] to various State and non-governmental organisations about violation of the prisoners' rights, ... including unlawful use of force by the prison's employees, the officers of the special forces, poor conditions of detention ... He received this information from these prisoners, contrary to the procedure established by law.
The following had been established in the course of investigation, based on the personal files of the prisoners, materials of the previous inspections by the special prosecutor's office and other information.
... On 29 January 2002 the employees of Zamkova Prison, and not “Berkut” effectuated previously planned ... measures aimed at finding underground tunnels, prohibited items, means for escape, [they] inspected technical and engineering security means, in presence of the Shepetivka prosecutor ... and no complaints were made.
Inmates, who at the same period of time stayed in the same cell with Mr Davydov and Mr Ilchenko have not confirmed infliction of physical injuries in their explanations, other unlawful acts on the part of [Prison] officials.
... the prisoners were provided with residential space of 2,5 square metres, everyone having an individual sleeping place and linen, clothes and shoes according to season.
... there were no complaints about poor medical treatment ...
... there were no postal envelopes and pens available in the Prison shop ...”
94.  On 15 June 2002 the Khmelnytsky Regional Prosecutor informed the Deputy Prosecutor General, who was reviewing the complaints by Mr Zherdev, that an investigation into these complaints revealed no evidence of ill-treatment of the applicants. Mr Bukher sent letters to Mr Zherdev and prisoners Mr Ilchenko, Mr Druzenko, Mr Mironov, Mr Lytvynov and Mr Kulyk, informing them of his resolution refusing to initiate criminal proceedings.
95.  On 11 July 2002 the Deputy Prosecutor General again instructed the Khmelnytsky Regional Prosecutor to conduct an investigation into these complaints. In particular, the instruction referred to a joint investigation into the complaints by the regional prosecution service, Prison Department officials, and medical staff from the region and representatives of the Ombudsperson. The instruction also stated that it was necessary to investigate other matters, such as whether the applicants had applied for medical assistance and whether they received it, and whether they had complained to the prosecution service.
96.  On 24 July 2002 Mr Yantselovsky, a senior assistant to the Khmelnytsky Regional Prosecutor, questioned sixteen persons, including prisoners and personnel of Zamkova Prison, who all stated that no physical force had been applied to the prisoners in the course of the search conducted on 29 January 2002. Mr Ilchenko and a prisoner Mr Pavlysyk refused to give evidence concerning the complaints.
97.  On 6 August 2002 the Acting Prosecutor of the Khmelnytsky Region informed the Deputy Prosecutor General that Mr Zherdev's complaints were unsubstantiated. The investigation file had been transferred to the General Prosecutor's Office for examination.
98.  On 15 October 2001 Mr S.I. Skokov, the head of the department for educational, social and psychological work with prisoners, informed the First Deputy Head of the State Prison Department that the applicants' complaints were ungrounded. This information was provided in reply to request from the First Deputy Head of the State Prison Department and on the basis of the investigation report produced by Lieutenant Danovsky, an inspector from the department for educational, social and psychological work with prisoners, who inspected Zamkova Prison in person from 3 to 4 October 2001. The report contained no review of medical evidence and was largely based on the fact that training of 30 May 2001 was conducted lawfully as it was based on a lawful decision to conduct this training and was supervised by the special prosecutor Volkov. The report also referred to the first and second applicants' personal files. It mentioned that the first and second applicants, were dangerous criminals and the first applicant (Mr Davydov) was complaining frequently to the authorities.
99.  From August 2002 to 4 May 2006 the applicants' then representative Mr Zherdev unsuccessfully complained to various authorities, including the General Prosecutor's Office, about various interferences with the applicants' correspondence. He also raised various issues concerning the applicants' poor conditions of detention, ill-treatment in 2002-2005 and violations of their rights.
100.  On 14 April 2003 the Governor of Zamkova Prison Mr Snegir, in reply to the letter of Mr Zherdev, stated that none of the prisoners concerned (including Mr Druzenko, Mr Gomenyuk and Mr Ilchenko) had ever requested an application form from him to institute proceedings before the European Court of Human Rights. Furthermore, he stated that the prisoners were serving their sentence according to the relevant law provisions and no violations were found on the basis of his complaints. He attached to his letter standard letters with statements from Mr Ilchenko, Mr Druzenko, Mr Kulyk, Mr Myronov, Mr Martov and Mr Kuzmenko, all dated 1-5 April 2003, in which they mentioned that they no longer wished to correspond with Mr Zherdev and that they had no complaints about the two training events, Zamkova Prison and its officers. He further mentioned that the prisoners Mr Ilchenko, Mr Druzenko and Mr Gomenyuk were held in single occupancy cells.
101.  The relevant extracts from the above Recommendation, adopted by the Committee of Ministers on 24 September 1982, provide as follows:
“... Recommends the governments of member states: 8.  to have a system for regular review to ensure that time spent in reinforced security custody and level of security applied do not exceed what is required; 9.  to ensure, when they exist, that reinforced security units have the appropriate number of places, staff and all necessary facilities;
102.  The relevant extracts from Recommendation no. R (87) 3, adopted by the Committee of Ministers on 12 February 1987, provide:
“The basic principles
... 1.  The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules.
... 3.  The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self‑supporting lives after their release.
... 5.  The protection of the individual rights of prisoners with special regard to the legality of the execution of detention measures shall be secured by means of a control carried out, according to national rules, by a judicial authority or other duly constituted body authorised to visit the prisoners and not belonging to the prison administration.
Accommodation
... 14.1.  Prisoners shall normally be lodged during the night in individual cells except in cases where it is considered that there are advantages in sharing accommodation with other prisoners. 2.  Where accommodation is shared it shall be occupied by prisoners suitable to associate with others in those conditions. There shall be supervision by night, in keeping with the nature of the institution. 15.  The accommodation provided for prisoners, and in particular all sleeping accommodation, shall meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially the cubic content of air, a reasonable amount of space, lighting, heating and ventilation...
Medical services 26.1.  At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. 2.  Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be a staff of suitably trained officers.
... 29.  The medical officer shall see and examine every prisoner as soon as possible after admission and thereafter as necessary, with a particular view to the discovery of physical or mental illness and the taking of all measures necessary for medical treatment; the segregation of prisoners suspected of infectious or contagious conditions, the noting of physical or mental defects which might impede resettlement after release; and the determination of the fitness of every prisoner to work. 30.1.  The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. 2.  The medical officer shall report to the director whenever it is considered that a prisoner's physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment.
Discipline and punishment 33.  Discipline and order shall be maintained in the interests of safe custody, ordered community life and the treatment objectives of the institution.
... 35. The following shall be provided for and determined by the law or by the regulation of the competent authority:
a. conduct constituting a disciplinary offence;
b. the types and duration of punishment which may be imposed;
c. the authority competent to impose such punishment;
d. access to and the authority of the appellate process. 36.1.  No prisoner shall be punished except according to the terms of such law or regulation, and never twice for the same act. 3.  No prisoner shall be punished unless informed of the alleged offence and given a proper opportunity of presenting a defence.
... 37.  Collective punishments, corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishment shall be completely prohibited as punishments for disciplinary offences. 38.1.  Punishment by disciplinary confinement and any other punishment which might have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer after examination certifies in writing that the prisoner is fit to sustain it. 3.  The medical officer shall visit daily prisoners undergoing such punishments and shall advise the director if the termination or alteration of the punishment is considered necessary on grounds of physical or mental health.
Information to, and complaints by, prisoners 41.1.  Every prisoner shall on admission be provided with written information about the regulations governing the treatment of prisoners of the relevant category, the disciplinary requirements of the institution, the authorised methods of seeking information and making complaints, and all such other matters as are necessary to understand the rights and obligations of prisoners and to adapt to the life of the institution. 42.1.  Every prisoner shall have the opportunity every day of making requests or complaints to the director of the institution or the officer authorised to act in that capacity. 2.  A prisoner shall have the opportunity to talk to, or to make requests or complaints to, an inspector of prisons or to any other duly constituted authority entitled to visit the prison without the director or other members of the staff being present. However, appeals against formal decisions may be restricted to the authorised procedures. 3.  Every prisoner shall be allowed to make a request or complaint, under confidential cover, to the central prison administration, the judicial authority or other proper authorities. 4.  Every request or complaint addressed or referred to a prison authority shall be promptly dealt with and replied to by this authority without undue delay.
Personnel
... 63.1.  Staff of the institutions shall not use force against prisoners except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Staff who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the director of the institution. 3.  Except in special circumstances, staff performing duties which bring them into direct contact with prisoners should not be armed. Furthermore, staff should in no circumstances be provided with arms unless they have been fully trained in their use.
... Treatment objectives and regimes 64.  Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this. 65.  Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as:
a.  to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community;
b.  to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners; ...
... 71.1.  Prison work should be seen as a positive element in treatment, training and institutional management. 2.  Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer.
... Additional rules for special categories 90.  Prison administrations should be guided by the provisions of the rules as a whole so far as they can appropriately and in practice be applied for the benefit of those special categories of prisoners for which additional rules are provided hereafter.”
103.  The relevant extracts from the Appendix to Recommendation no. R (99) 22 of the Committee of Ministers, adopted by the Committee of Ministers on 30 September 1999, provide:
“... II.  Coping with a shortage of prison places
... 7.  Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modern management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners' health care and to the opportunity for outdoor exercise. ...”
III.  REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT REPORTS)
104.  The Report to the Government of Ukraine concerning the visit undertaken from 15 to 23 July 1999 by the CPT states that the prisoners of the Kharkiv SIZO and Prison no. 85 complained to the members of the CPT about physical violence and the destruction of personal objects by hooded officers from a special detachment (the report referred to “Spetsnaz” or special forces) which regularly intervened in Prison no. 85 (§§ 25-26, with regard to “Ill-treatment”). Physical violence had been applied to the prisoners held in disciplinary detention. The report mentioned that the Ukrainian authorities recognised the existence of a special forces operating under the auspices of the Regional Prison Department. They claimed that this unit was involved in supervisory searches in the cells. The aim had been to prevent acts contrary to the law.
105.  The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 26 September 2000 read as follows:
“... 2.  Ill-treatment 62.  In Vinnytsia Prison No. 176 ... Allegations were also heard concerning interventions of teams from the Regime and Protection Department; prisoners stated that they have been stripped to their underpants by members of such teams and, sometimes, dragged out of their cell and beaten. On examination by a medical member of the delegation, one prisoner was found to have a healed whitened 6 cm long by 1 cm wide scar on his back, consistent with his allegation of having been beaten with rubber batons during the previous New Year period. Further, it was alleged that during the weekly searches, the cells were turned upside down and that, occasionally, especially at night, teams would use a Rottweiler dog to ensure that cells were rapidly cleared of their occupants. 63.  The CPT recommends that the authorities at all levels (central, regional and local) deliver the clear message that all forms of ill-treatment of prisoners are not acceptable and will, if they occur, be severely punished.
Further, the CPT recommends that the Ukrainian authorities carry out a thorough enquiry into the methods used at Vinnytsia Prison No. 176 by teams from the Regime and Protection Department, during their interventions in the establishment. It would also like to be informed of the results of the enquiries initiated by the Director of Simferopol SIZO No. 15 referred to in paragraph 62, as well as of any measures subsequently taken.”
106.  The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002 read as follows:
“... 2.  Ill-treatment 89.  During the 2002 visit, the delegation received no allegations of physical ill‑treatment by prison staff working in Prison No. 8 and SIZO No. 21. 90.  However, in early April 2003, the CPT received allegations that, following its delegation's visit to SIZO No. 21, prisoners interviewed by the delegation had been intimidated by prison staff. It was also alleged that, between 5 February and 15 March 2003, hooded prison staff members had carried out searches in the prison, during which prisoners had been beaten because they had protested at the way in which the searches were being carried out (numerous objects, including documents concerning proceedings underway, were seized).
The CPT recommends that the Ukrainian authorities carry out an independent and thorough investigation into these allegations, and that they inform the Committee, in due course, of the results of the investigation. 91.  At Colony No. 14, the delegation received allegations according to which, in April/May 2002, after an evening roll call, several hooded prison staff members, said to be drunk, had entered Sector No. 3 and had beaten prisoners from wards 11, 13 and 20 with truncheons, assisted by prisoners who were also hooded. By letter of 15 April 2003, the Ukrainian authorities submitted the conclusions of an official inquiry into these allegations, carried out by the local and regional prison administration. It emerged from the conclusions that the allegations had not been confirmed. The conclusions were based on: written declarations by prisoners in Sector No. 3 that there had been no such incidents and that they had no complaints about the prison administration; an interview with the officer responsible for Sector No. 3, a report by the head of the operational section and an examination of various registers kept in the prison, none of which made any mention of incidents during the period in question; and the absence of requests from the prosecutor's office for an inquiry into such incidents.
The CPT is far from convinced by this inquiry and the conclusions drawn from it. It is a wholly internal non-independent prison administration inquiry.
The CPT recommends that the Ukrainian authorities deliver to the staff of Colony No. 14 the clear message that all forms of ill-treatment are unacceptable and will, if they occur, be the subject of severe sanctions.”
107.  The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 October 2005 read as follows:
“... The CPT also recommends that the Ukrainian authorities review as soon as possible the norms fixed by legislation for living space per prisoner, ensuring that these are at least 4 m² in all the establishments under the authority of the Department for the Enforcement of Sentences. ...”
108.  The relevant extracts from the Report by the Commission for Human Rights, Mr T. Hammarberg, on his Visit to Ukraine (10‑17 December 2006), for the attention of the Committee of Ministers and the Parliamentary Assembly (Strasbourg, 26 September 2007, CommDH (2007) 15) read:
“... 43.  Acts of torture constitute a criminal offence in Ukraine. In 2005 the Ukrainian Parliament (Verkhovna Rada), adopted laws which strengthened the prosecution of perpetrators of torture, the respect of rights of prisoners and arrested persons as well as a Law which ensured the right of prisoners to correspond with the ECtHR. This legislative improvement is welcomed by the Commissioner but it has to be matched by proper and systematic implementation. Ukraine has ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CETS 126) in 1997 and its two additional protocols in 2002. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force for Ukraine in 1987. 44.  Despite these achievements practically all the Commissioner's interlocutors, including heads of parliamentary political groups, representatives of law enforcement and civil society confirmed that torture was widespread in Ukraine. ...
... 46.  The penitentiary system has been removed from the competence of the Ministry of the Interior, but has never been transferred to the Ministry of Justice as required by the commitments of Ukraine taken during accession to the Council of Europe. The State Department for the execution of sentences was created in 1998 as the central body of the penitentiary system, with a special status subordinated to the Cabinet of Ministers. ... The penitentiary system is chronically under-funded. While appreciating that the State financing has been increasing steadily, the Commissioner urges the State to continue improving conditions of detention...
... 48.  Overcrowding in the penitentiary institutions is one of the most troublesome issues. (...) The Commissioner, however, did take into account and welcomed the fact that despite an important degree of overcrowding of prisons, the number of prisoners has considerably decreased. The leadership of the Department for the execution of sentences said that the number of prisoners was 209,000 in 1999 compared to 161,900 today. At the same time, the number of penitentiary institutions remained the same. ... The detention rate remains one of the highest in the world and further effort is needed to cope with the serious level of overcrowding...
... 49.  The Commissioner noticed that many penitentiary institutions buildings were dilapidated and in a poor state of repair. Thus, they do not offer sanitary and other special international requirements. The prisoners the Commissioner met mostly complained about the lack of light, bad ventilation systems, undernourishment, poor sanitary conditions, lack of beds and failure to separate prisoners with infectious contagious diseases. When visiting detention centres in L'viv, Odessa and Kyiv, the Commissioner was concerned that not a single cell met European standards. One could see the traces of humidity on the walls. The latrines were in an appalling state of repair spreading a stench throughout the whole cell. This environment is not only unhealthy for the prisoners, but also undermines their right to a certain degree of dignity. The disciplinary cells were even worse...”